R v Walters

[2016] ACTSC 336

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Walters

Citation:

[2016] ACTSC 336

Hearing Dates:

16 November 2016

DecisionDate:

17 November 2016

Before:

Elkaim J

Decision:

(i)          The accused is found not guilty of the offence of possessing a prohibited firearm whilst unauthorised.

(ii) The accused is found guilty of the related summary offence of unauthorised possession of stolen property in contravention of s 324(1) of the Criminal Code 2002 (ACT).

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – verdict – trial by judge alone – possess a prohibited firearm whilst unauthorised – DNA evidence – s 42(a)(iii) Firearms Act 1996 (ACT) – s 11(1)(a) Firearms Act 1996 (ACT) – evidential burden on the accused

Legislation Cited:

Criminal Code 2002 (ACT), ss 58(7), 60, 324(1)

Firearms Act1996 (ACT), s 11(1)(a)

Cases Cited:

R v Hill [2012] ACTSC 121; 266 FLR 1

Parties:

The Queen (Crown)

Brendon Walters (Accused)

Representation:

Counsel

Ms S McFarland (Crown)

Ms L Taylor (Accused)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Numbers:

SCC 71 of 2016; SCC 72 of 2016

ELKAIM J:

Introduction

1. The accused has pleaded not guilty to the single count in the indictment dated              9 November 2016.

1. In accordance with s 68B of the Supreme Court Act1933 (ACT), the accused elected to be tried by a judge alone.

1. The charge facing the accused is:

That on 20 September 2015 at Canberra, the accused possessed a prohibited firearm and was not authorised by a licence, permit or otherwise by the Firearms Act 1996 (ACT) to possess the firearm.

1. The offence is alleged to have occurred on 20 September 2015. On the morning of that day the accused was driving on Northbourne Avenue, in the suburb of Turner, when he was involved in a single vehicle collision. It is alleged he fled the scene after the accident.

1. A police search of the vehicle discovered a modified Winchester .22 rifle. A bayonet was also found.

1. The vehicle was a Nissan Pulsar owned by a Ms Sarah Bremner.

1. The collision was said to have occurred after the vehicle crossed an intersection against a red traffic light and then collided with a traffic light.

1. Before examining the evidence it is necessary to state the legal principles that I must apply before arriving at a verdict.

1. The prosecution must prove its case beyond reasonable doubt. The accused is presumed to be innocent. Suspicion and probability must play no part. As long as there is a reasonable doubt, the accused must be found not guilty.

1. The prosecution does not have to prove the truth of each fact that is asserted in its case. However it must prove each legal element of the charge beyond reasonable doubt.

1. The facts that I find must be based on the evidence, that is the evidence given by the witnesses and that contained in any exhibits. In addition, in assessing the evidence, I must apply my common sense. I must do so…